Orissa High Court
Kelu Charan Mohanty vs State Of Odisha And Another on 29 June, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3532 of 2012
Kelu Charan Mohanty .... Petitioner
Mr. Ramanath Acharya, Advocate
-versus-
State of Odisha and another .... Opposite Parties
Mr. J. Katikia, Addl. Government Advocate for the State
Mr. Sibasish Mishra, Advocate for O.P. No.2
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K. PATTANAIK
ORDER
29.06.2022
Order No.
Dr. S. Muralidhar, CJ.
09. 1. The challenge in the present petition is to an award dated 25th
November 2011 passed by the Labour Court, Bhubaneswar in
Industrial Dispute Misc. Case No.161 of 2003 filed by the
Petitioner under Section 33 C (2) of the Industrial Disputes Act,
1947 (ID Act) praying for computation of his arrears of wages for
the period April 1988 to December, 2002.
2. The case of the Petitioner before the Labour Court was that he
was engaged as a Workman by the Opposite Party-Management
and was having no managerial function.
3. The Management pointed out to the Labour Court that there was
a history of the litigation with the Petitioner having first filed OJC
No.4558 of 1995 in this Court assailing an order dated 14th January,
1994 passed by the Labour Court in I.D. Case No.329 of 1991 in an
application under Section 33 (C) (2) of the ID Act in which the
Labour Court refused to compute the Petitioner's entitlement on the
ground that he was not a Workman within the meaning of Section
2(s) of the ID Act.
4. On 9th October 2001, the learned Single Judge of this Court
disposed of the said OJC No.4558 of 1995 along with OJC No.3874
of 1995, also filed by the same Petitioner. It was categorically
observed by the learned Single Judge that there was already
pending in the Industrial Tribunal, Bhubaneswar since 1991 I.D.
Case No.32 of 1991 which was a reference under Section 10 of the
ID Act "for determination as to whether an Assistant Engineer/Sub-
Assistant Engineer working under the Management, Orissa State
Electricity Board (OSEB) (subsequently merged in Grid
Corporation and AES) were Workmen and entitled to be declared
as such for the purposes of the further consequential reliefs."
Accordingly, learned Single Judge concluded that there was no
occasion for the Labour Court to decide an application under
Section 33 C (2) of the ID Act. Therefore, the orders of the Labour
Court assailed in both the writ petitions were quashed and the
matter was remitted to the Labour Court "for fresh consideration of
the application under Section 33 C (2) of the ID Act after the
determination of the status is made by the Industrial Tribunal in ID
Case No.32 of 1991".
5. Thereafter, ID Case No.32 of 1991 came to be disposed of by the
Industrial Tribunal by an award dated 14th February, 2002. One of
the issues considered by the Industrial Tribunal was "whether the
Sub-Assistant Engineers (now Junior Engineers) working under
OSEB performed the duties of Workman and come within the
definition of 'Workman' given in Section 2 (s) of the ID Act".
While answering this issue in the negative, the Tribunal in the said
award dated 14th February 2002 categorically held that the
Claimants were "employed in the supervisory capacity and
admittedly they are drawing much more than the amounts stipulated
in the Act as their monthly salary and as such, they cannot in any
stretch of imagination be declared as Workman". The other issues
arising in the said ID Case No.32 of 1991 were held to have
become infructuous in view of the above finding.
6. The above award dated 14th February 2002 of the Industrial
Tribunal in ID Case No.32 of 1991 attained finality with their being
no further challenge to it.
7. The Petitioner was aware of the consequences of the above
award dated 14th February 2002 since in the Petitioner's own writ
petitions i.e. OJC Nos.4558 and 3874 of 1995, the learned Single
Judge had passed the earlier mentioned order dated 9th October
2001 remanding the matters to the Labour Court for deciding the
issue after the decision in ID Case No.31 of 1991.
8. It is pursuant to that remand that the impugned order has been
passed by the Labour Court and the issue has been decided against
the Petitioner by referring to the award of the Industrial Tribunal
dated 14th February 2002 in ID Case No.32 of 1991. Once it was
held that the Petitioner was not a Workman within the meaning of
Section 2 (s) of the ID Act, the question of computing his
entitlement within the ambit of Section 33 C (2) of the ID Act did
not arise.
9. Mr. Ramanath Acharya, learned counsel for the Petitioner places
reliance first on the decision of the Division Bench of this Court
dated 21st September 1993 in OJC No.3316 of 1990 (Gangadhar
Mishra v. Orissa State Electricity Board) and submits that it
squarely applies to the fact of the present case.
10. Having examined the said judgment, the Court is unable to
agree with the above contention of the learned counsel for the
Petitioner. Para-2 of the said decision states "the Petitioner's case is
that he should be paid salary equal to that of the Superintendent".
The case therefore was about equal pay for equal work. The said
decision did not address the issue whether within the meaning of
Section 2 (s) of the ID Act, the Petitioner in that case was a
'Workman'. Consequently, the said decision is of no assistance to
the Petitioner.
11. It is moreover pointed out by the learned counsel appearing for
Opposite Party No.2 that the SLP filed by the OSEB against the
said decision being SLP(C) No. CC 23311 of 1994 was no doubt
dismissed by the Supreme Court on 3rd January 1995, but the order
reads "although there is much to be said on merits in favour of the
Petitioner-Board, we are dismissing the petition because there is no
satisfactory explanation for condoning the delay of 313 days in
filing the present special leave petition. The question of law is kept
open to be agitated in some appropriate proceedings."
12. Reliance is next placed by Mr. Acharya on the decisions in
Arkal Govind Raj Rao v. Ciba Giegy of India Ltd. AIR 1985 SC
985 and National Engineering Industries Limited v. Shri Shri
Kishan Bhageria AIR 1988 SC 829.
13. The question in Arkal Govind Raj Rao (supra) was whether a
person recruited as Stenographer-cum-Accountant and promoted as
Assistant-Designated 'Group Leader' was a Workman within the
meaning of Section 2 (s) of the ID Act. Clearly, the decision turned
on its own facts whereas in the present case concerning the very
post in which the Petitioner was working there is a finding of the
Labour Court which has become final, that such person cannot be
considered to be a Workman within the meaning of Section 2 (s) of
the ID Act.
14. Likewise, in the decision in National Engineering Industries
Limited (supra), the question was whether a person "not doing
supervisory work", but only checking up on behalf of the employer
was a 'Workman' within the meaning of Section 2 (s) of the ID
Act. That issue does not arise for consideration here. On the other
hand, the very issue whether the post held by the Petitioner could be
considered to be that of a 'Workman' has been answered against the
Petitioner by the Labour Court in ID Case No.32 of 1991 by the
award dated 14th February, 2002.
15. In that view of the matter, the Court is unable to find any error
having been committed by the Labour Court in rejecting the claim
of the Petitioner. The writ petition is accordingly dismissed with no
orders as to costs.
(Dr. S. Muralidhar)
Chief Justice
(R.K. Pattanaik)
Judge
S.K. Guin
